In Plessy v. Ferguson the Supreme Court held that
the state of Louisiana did not violate the Fourteenth Amendment by establishing
and enforcing a policy of racial segregation in its railway system.
Justice John Marshall Harlan wrote a memorable dissent to that decision,
parts of which are quoted today by both sides of the affirmative action
controversy. One statement often quoted by opponents of race-conscious
affirmative action programs is Harlan's assertion that the Constitution
is "color-blind," which can be found in the excerpts below.

Judge Harlan's dissent

In respect of civil rights, common to all citizens, the
Constitution of the United States does not, I think permit any public
authority to know the race of those entitled to be protected in the enjoyment
of such rights. Every true man has pride of race, and under appropriate
circumstances which the rights of others, his equals before the law, are
not to be affected, it is his privilege to express such pride and to take
such action based upon it as to him seems proper. But I deny that
any legislative body or judicial tribunal may have regard to the race
of citizens which the civil rights of those citizens are involved.
Indeed, such legislation as that here in question is inconsistent not
only with that equality of rights which pertains to citizenship, national
and state but with the personal liberty enjoyed by everyone within the
United States....

It was said in argument that the statute of Louisiana does
not discriminate against either race but prescribes a rule applicable
alike to white and colored citizens. But this argument does not
meet the difficulty. Everyone knows that the statues in question
had its origin in the purpose, not so much to exclude white persons from
railroad cars occupied by blacks, as to exclude colored people from coaches
occupied by or assigned to white persons. Railroad corporations
of Louisiana did not make discrimination among whites in the matter of
accommodation for travellers. The thing to accomplish was, under
the guise of giving equal accommodations for whites and blacks, to compel
the latter to keep to themselves while travelling in railroad passenger
coaches. No one would be so wanting in candor as to assert the contrary.
The fundamental objection, therefore, to the statues is that it interferes
with the personal freedom of citizens....If a white man and a black man
choose to occupy the same public conveyance on a public highway, it is
their right to do so, and no government, proceeding alone on grounds of
race, can prevent it without infringing the personal liberty of each....

The white race deems itself to be the dominant race in this
country. And so it is, in prestige, in achievements, in education,
in wealth, and in power. So, I doubt not, it will continue to be
for all time, if it remains true to its great heritage and holds fast
to the principles of constitutional liberty. But in the view of
the Constitution, in the eye of the law, there is in this country no superior,
dominant, ruling class of citizens. There is no caste here.
Our Constitution in color-blind and neither knows nor tolerates classes
among citizens. In respect of civil rights, all citizens are equal
before the law. The humblest is the peer of the most powerful.
The law regards man as man and takes no account of his surroundings or
of his color when his civil rights as guaranteed by the supreme law of
the land are involved....

The arbitrary separation of citizens, on the basis of race,
while they are on a public highway, is a badge of servitude wholly inconsistent
with the civil freedom and the equality before the law established by
the Constitution. It cannot be justified upon any legal grounds

If evils will result from the commingling of the two races
upon public highways established for the benefit of all, they will infinitely
less than those that will surely come from state legislation regulating
the enjoyment of civil rights upon the basis of race. We boast of
the freedom enjoyed by our people above all other peoples. But it
is difficult to reconcile that boast with the state of the law which,
practically, puts the brand of servitude and degradation upon a large
class of our fellow citizens, our equals before the law. The thin
disguise of "equal" accommodations for passengers in railroad coaches
will not mislead anyone, nor atone for the wrong this day done....

I do not deems it necessary to review the decisions of state courts to
which reference was made in argument. Some, and the most important
to them are wholly inapplicable, because rendered prior to the adoption
of the last amendments of the Constitution, when colored people had very
few rights which the dominant race felt obliged to respect. Others
were made at a time when public opinion, in many localities was dominated
by the institution of slavery, when it would not have been safe to do
justice to the black man; and when, so far as the rights of blacks were
concerned, race guides in the era introduced by the recent amendments
of the supreme law, which established universal freedom, gave citizenship
to all born or naturalized in the Untied States and residing here, obliterated
the race line from our systems of governments, national and state, and
placed our free institutions upon the broad and sure foundation of the
equality of all men before the law....

For the reasons state, I am constrained to withhold my assent
from the opinion and judgment of the majority.